Paula J. Sims gave birth to three children, but she was a mother to only one. Rather than nurture her two baby girls, she killed them. A capital murder trial ensued.

A lawyer named Donald Groshong defended Paula's interests before, during, and after her trial. He represented the interests of her husband, Robert, at the same time. The authorities suspected that Robert was also involved in the two killings. Although Robert was never charged, he is still haunted by suspicions that he was somehow involved.

Groshong successfully defended against the State's endeavor to make Paula pay for her misdeeds in kind. He spoiled the State's effort to set a date with death. However, the only other aim that he was able to defeat was the prosecution of Robert. Paula was tried, convicted, and condemned to a life of imprisonment.

We are asked to review Groshong's performance, as well as the fidelity with which he performed, in order to decide whether Paula received faithful and competent legal representation. Paula claims that Groshong dedicated himself to her ex-husband's well-being (Paula and Robert are now divorced), an enterprise that fettered his watch over her own interests. She also complains that he ignored a viable defense that would have negated criminal responsibility. Paula wants a new trial that can test whether she suffered from postpartum disorders that substantially diminished her capacity to appreciate the criminality of her conduct.

We are also called upon to review her sentence in light of the Supreme Court's pronouncement in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

Two daughters were born to the Sims family. Their births in 1986 and 1989 bracketed the birth of a son in early 1988. The son thrived, but his two sisters, Loralei and Heather, did not fare so well. Their stay upon this earth was short-lived.

Life's journey ended for Loralei a few weeks after her birth in 1986. The pathologist who performed the autopsy on Loralei believed that someone had placed their hands over Loralei's nose and mouth until she suffocated. After a trial at which she claimed innocence, Paula admitted that Loralei was intentionally deprived of the oxygen needed to sustain life. However, she contradicted the pathologist's opinion. She claimed that, rather than place her hands over Loralei's air passages, she simply held Loralei under water until she drowned. Either way, Loralei drew her last breath under her mother's watchful eye. Her remains were tossed into a wooded ravine, there to suffer nature's ravages until Jersey County authorities could find her body.

Heather suffered a similar fate a few weeks after her birth in 1989.

When the Jersey County police answered Paula's feigned cry for help in 1986, Paula cast the blame for Loralei's disappearance on a mysterious masked intruder. She claimed that he appeared at her home and kidnaped Loralei. The investigation that ensued produced grave doubts about her story. The investigators' concerns that Paula was lying lacked sufficient weight to accuse her of any wrongdoing.

The Sims family moved from Jersey County to Madison County during the ongoing investigation. Over time, the inquiry into Loralei's death grew cold. But in 1989, a smoldering investigation reignited, fueled by Paula's report of another abduction by the same mysterious intruder. Another newborn baby was missing. Several days after the reported abduction, her remains were found wrapped in a small, plastic trash bag. The bag was stuffed into a public park trash barrel, presumably for purposes of undetected disposal.

The Madison County authorities spent little time pursuing a phantom killer. They were unwilling to embrace the unlikely possibility that a bizarre madman with a penchant for killing little babies laid in wait three years, followed the Sims family into Madison County, and singled out another newly arrived Sims family member for his next victim. Investigators were convinced that they needed to look no further than Heather's parents to discover who was responsible for Heather's death. Paula and her husband, Robert, were prime suspects from the outset of Heather's murder investigation. The State removed their son, Randall, from the home.

Paula and Robert correctly felt an immediate need for legal assistance during the ongoing probe. Before any charges were leveled, they hired Groshong to represent their respective interests. He endeavored to assist both of them. It was an undertaking infused with the potential for developing into a conflict of interest.

Madison County prosecutors initiated a grand jury investigation into Heather's death. Don Weber was the assistant State's Attorney in charge of the inquiry. On June 12, 1989, Weber handed a letter to Groshong. The letter conveyed the State's interest in taking a statement from Robert. It suggested that Robert could greatly ease his own concerns by providing information about Paula's guilt. The letter informed Groshong that the State was "inclined to negotiate" in return for Robert's cooperation and truthful testimony against Paula. It also intimated that Robert's assistance would be of considerable value to him. Weber did not specify what Robert would receive in return for his help, but whatever he had in mind was not going to inhibit Robert's future parenting of Randall. Weber wrote, "[W]e are considering granting custody of the [Sims'] minor [son] to Robert Sims should his statement prove to be true."

The letter concluded, "Please do not communicate this offer or the contents of this letter to Paula Sims." After tendering the letter to Groshong, Weber questioned whether Groshong should continue his dual representation.

On June 13, 1989, Groshong wrote a letter to Weber. Groshong advised that he had discussed the offer with Robert and Paula, in each other's presence, contrary to Weber's wishes. Groshong requested whatever information Weber possessed that would suggest how Robert might be able to inculpate Paula.

No negotiation developed between Robert and the State.

The grand jury indicted Paula on charges of first-degree murder, obstructing justice, and concealing a homicidal death. The State intended to seek capital punishment. Robert was not indicted but remained under suspicion. The State would have welcomed more evidence to confirm its intuitions about his role in the two deaths.

In early 1990, Paula stood trial and testified in her own defense. She recounted the events surrounding the abductions of Loralei and Heather. Her tales of woe proved unconvincing. The jury returned guilty verdicts on all charges. Shortly thereafter, Paula confirmed the jury's wisdom. Before the sentencing hearing could begin, she confided in Groshong that her testimony was false. Paula admitted that she killed her two baby girls.

Her revelation came at an opportune time. The return of the guilty verdicts enhanced the threat of capital punishment, a circumstance that Weber was determined to turn to new advantage. Weber's mind turned to another pursuit, stayed but not forgotten. He wanted to prosecute Robert Sims, based upon a devout belief in Robert's complicity. *fn1 He approached Groshong and informed him of his interest in knowing what really happened. Weber offered to yield further pursuit of capital punishment in return for the truth about the two murders. Paula's timely confession allowed Groshong to explore the overture. It is uncertain whether Groshong discussed the overture with both clients, as he had done with the earlier offer to Robert.

With a death-qualified jury waiting in the wings, it was decided that Paula would talk to Weber in the hopes of avoiding capital punishment. Paula and Groshong were given an audience with Weber, who gave his personal assurance of confidentiality. *fn2 Paula confessed her sins in Weber's presence. However, Paula's confession did not please him. It may have eased his mind before he pursued her death, but it failed to meet his expectations. Paula did not confirm Weber's suspicions about Robert's role in the murders. She claimed to have acted alone. Moreover, she claimed that she had drowned her two daughters and that she had deposited Heather in the park trash barrel four days before her body was discovered. The pathologist was certain that the means of death was suffocation rather than drowning, and the condition of Heather's body when discovered contradicted Paula's claim about the length of stay in the trash barrel. Weber was certain that Paula was being less than forthright about the two murders. Hence, he offered no concession and resumed the State's quest to punish Paula with death.

The jury considered capital punishment. It found that the crime was death-qualified. However, Paula dodged the State's poison when the jury deadlocked during the second phase of the sentencing hearing. Thereafter, the trial judge sentenced Paula to life imprisonment.

Groshong appealed the convictions and sentences to this court, and we affirmed. People v. Sims, 244 Ill. App. 3d 966, 612 N.E.2d 1011 (1993). He then sought to advance Paula's interests in the supreme court, to no avail. People v. Sims, 152 Ill. 2d 575, 622 N.E.2d 1223 (1993). Groshong's efforts on Paula's behalf came to an end.

Paula began to speak about her case with other people. A prison psychologist, an author, and several other prisoners lent a sympathetic ear. As a result of the discourse, Paula discovered that mothers who kill offspring often raised insanity defenses. As she gained knowledge about postpartum disorders, Paula developed the belief that her murderous bent was the by-product of postpartum psychosis. She also learned that Groshong was aware of comparable cases where postpartum psychosis provided the basis for an insanity defense, but Groshong had not pursued its use.

Those who suffer from postpartum depression suffer hormonal imbalances that can be discovered through blood tests. By not testing for it, Groshong bypassed a chance to develop objective evidence of the condition.

On August 28, 1994, Paula filed a pro se post-conviction petition. It alleged that Groshong provided ineffective assistance of counsel by dismissing the use of an insanity defense without fully exploring the possibility that she suffered from postpartum depression. On September 7, 1994, the trial court dismissed her pro se petition. She appealed, and we reversed on the grounds that post-conviction counsel had failed to comply with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). People v. Sims, No. 5-94-0660 (1997) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)).

On remand, counsel's review of the record resulted in the filing of an amended post-conviction petition that alleged a host of reasons why Groshong provided ineffective assistance of counsel. Among them was a claim that Groshong labored under a conflict of interest throughout his dual representation of Paula and Robert. The trial judge conducted a hearing on the amended petition, at which time he heard the following evidence.

Kathleen Hamill, an assistant appellate defender, testified. She recounted her efforts to contact Groshong after she read a news account of Heather's death. Hamill was familiar with similar cases of infanticide where postpartum-depression-based insanity pleas had been employed. She wanted to share her special knowledge. She made copies of important documents that explained the defense and that listed expert witnesses to consult. Hamill testified that she sent this information to Groshong, accompanied with a letter detailing the importance of early medical and psychological diagnostic testing. According to Hamill, she followed up the correspondence with a phone call to Groshong, in which she reiterated the importance of immediate diagnostic testing in order to detect hormonal imbalances indicative of postpartum illness.

Edward Loew, a prison psychologist, testified about Paula's therapy during incarceration. He determined that Paula suffered from major depression following Heather's birth. Loew discovered feelings of depression and guilt that stemmed from Paula's desire to have a child that her husband did not want and blamed her for having. According to Loew, during therapy Paula admitted her guilt. When she did, she insisted that Robert was not her accomplice.

Dr. Diane Sanford, an expert on postpartum disorders, testified at the hearing. She offered her opinion that Paula suffered from a postpartum-based mental illness at the time that she killed Heather.

Weber, Groshong, and Paula were also called to testify at the hearing.

Regarding Groshong's representation, Weber took the position that it worked to Paula's advantage rather than to her detriment. The June 12, 1989, letter to Groshong was designed to drive a wedge between Robert and Paula, precipitating a betrayal of their common defense. The divide-and-conquer strategy did not work, due primarily to Groshong's vigil over the Sims' mutual interests. *fn3

Groshong testified about his dual representation in the following manner. He understood Weber and his methodology. The letter was clearly an effort to destroy the Sims' united defense. Both clients were told of the letter's contents and of the potential conflict that the State's invitation created. Groshong agreed with Weber that Paula was better served by virtue of his dual representation. He added that Robert and Paula both claimed innocence, a position supportive of one another. Since their mutual denials of any wrongdoing remained consistent, their interests were never placed at odds. Their mutual defense remained devoid of antagonism throughout his dual role as their advocate.

Groshong addressed his decision not to employ an insanity defense as follows. He studied Hamill's materials and suggestions, had an associate conduct independent research into the use of postpartum-depression insanity defenses, and discussed the possibility of an insanity plea with Paula before electing to discard it. An insanity plea would have detracted from Paula's claimed innocence. Moreover, Paula had never complained of depression-like symptoms, and an examination of her medical records proved consistent with this lack of complaint. Given the absence of ...

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